Microsoft to respond to Supreme Court petition by Monday

The software giant files a short response to a government petition asking that the company's appeal in the antitrust case be taken directly to the Supreme Court.

January 11, 20024:48 PM PST

WASHINGTON--Microsoft today agreed to respond quickly to a government petition asking that the company's appeal in the antitrust case be taken directly to the Supreme Court.

In a brief filed Monday, the
government had proposed Microsoft respond to its petition four days after the filing. The petition was filed yesterday.

The Redmond, Wash.-based software giant agreed to the schedule, even though it "is entitled to eleven calendar days to respond to that motion," wrote Microsoft lawyers.

"Notwithstanding that rule, Microsoft will file its response to plaintiffs' motion within the four business days suggested by plaintiffs in their submission filed on June 12, 2000, a schedule to which Microsoft previously has informed the Court it is willing to adhere," the brief continued.

Microsoft's brief could delay U.S. District Judge Thomas Penfield Jackson from acting on the government's petition, which was filed last night. But Jackson is expected to rule today on another Microsoft motion asking for a stay on business restrictions set to go into effect in about 83 days.

Jackson is expected to reject the motion, which the appellate court would decide on appeal.

"I'm surprised they're agreeing to the four days. I wouldn't," said Rich Gray, an intellectual property attorney with Outside General Counsel Silicon Valley in Menlo Park, Calif.

"They didn't have to do it," Gray said. "One reason Microsoft may have done it is they can then argue before the court of appeals the government should have an equally short time to respond to the stay motion."

The ongoing antitrust saga, which pits Microsoft against the Justice Department and 19 states, took an unexpected twist yesterday when the U.S. District Court of Appeals for the District of Columbia issued an order expediting the appeal before seven judges.

The appeals court's proactive maneuver "sends a message to the government and the Supreme Court" that it is serious about assuming responsibility for the case, said University of Baltimore Law School professor Bob Lande.

Lande said the appeals court's action makes it less likely it would accept the appeal directly.

"The order issued yesterday by the Court of Appeals clearly shows that the court is prepared to move expeditiously, which is in the best interests of all parties," said Microsoft spokesman Jim Cullinan. "Given the vast array of factual, legal and procedural errors with the District Court's decision, we believe the Court of Appeals is the proper venue."

Just a week ago, Jackson ordered that Microsoft be split into separate operating systems and software applications companies, which he stayed pending appeal. In April, Jackson ruled Microsoft violated two sections of the 1890 Sherman Act by illegally maintaining its monopoly in the Intel PC-based operating systems and unlawfully attempting to extend that monopoly to the Web browser market.

The tug-of-war over where the appeal should be heard is the most recent drama in the nearly two-year antitrust case. The government would like to take the case directly to the Supreme Court, officially to expedite the case.

Microsoft, however, would like the case heard first by the appeals court, which has treated it favorably twice before.

"Microsoft does not believe that the government should try to evade the Court of Appeals, but we are confident of our appeal regardless of which court hears the case," Cullinan said.

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